With Marriage Decided, Adoption Rights Next

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by Alexa Ura - The Texas Tribune on

Photo by Marjorie Kamys Cotera

Cleopatra De Leon and Nicole Dimetman didn’t want to be faces of the fight for same-sex marriage in Texas.

But the Austin couple, married in Massachusetts in 2009, jumped into the fray when they realized that — because Texas law did not recognize their marriage — both of their names could not be listed on the birth certificate of their first child.

Now that the U.S. Supreme Court has legalized same-sex marriage nationwide, De Leon and Dimetman's marriage is valid before the state. But with a 3-year-old son and a new baby girl at home, the couple isn’t done fighting just yet.

“Even though we’re equal in marriage, we’re not necessarily equal under the family law,” said De Leon, who on Friday adopted the child Dimetman gave birth to three months ago. “There’s a whole tangle of family code laws that need to be advocated against.”

Before the court's decision, gay couples in Texas faced a labyrinth of legal obstacles when they had or adopted children, and some could secure only limited parental rights. With same-sex marriage legal, most presume that streamlined, consistent parental rights will follow.

But it's unclear how long that will take, and whether more litigation will be needed.

Texas birth certificates only allow for a mother and a father to be listed. That means, for instance, when a woman has a child, her same-sex spouse is not automatically listed on the birth certificate — and considered the child's parent — as a male spouse would be. The non-biological parent has to adopt the child later to gain parental rights.

Same-sex couples adopting a child run into the state's requirements for supplemental birth certificates, which are issued to establish parental rights for adopters. Texas supplemental certificates allow for two parents to be listed, "one of whom must be a female, named as the mother, and the other of whom must be a male, named as the father." As a result, only one parent is listed for same-sex couples.

The Department of State Health Services has already modified marriage licenses to accommodate same-sex couples, but a spokeswoman for the department said it is analyzing what to do about birth certificates in light of the high court’s decision.

“We are reviewing the ruling to determine what, if any, changes will be needed to our forms or processes relating to issues other than marriage applications,” said the department's Carrie Williams.

Family law attorneys who handle same-sex adoptions aren’t hopeful the matter will be easily resolved, predicting it’ll take a legal challenge to force the state to modify the birth certificates.

Suzanne Bryant — who with her wife obtained a marriage license before the Supreme Court legalized same-sex marriage — hopes state leaders will see the “writing on the wall,” but anticipates a lawsuit challenge before the birth certificate limitations are removed.

“It is unfair to discriminate against children and not let them have an accurate birth certificate,” Bryant said. “I just hope that it happens quickly because there will be children that will be harmed by inaccurate birth certificates.”

It is estimated that 9,191 same-sex couples in Texas are raising children, according to the Williams Institute, a nonpartisan think tank at the University of California, Los Angeles.

Dallas family law attorney Susan Vrana said she expected the state's top elected officials, including Gov. Greg Abbott and Attorney General Ken Paxton, both Republicans, to provide leadership on the issue. (Paxton, a conservative who staunchly opposes same-sex marriage, has said county clerks with religious objections can opt out of issuing marriage licenses.)

“I’m hoping that good judgment and good lawyering by the attorney general and the governor will” resolve the issue, Vrana said. “We all live in hope that they’ll put their lawyer hats on and remember their oath.”

Abbott and Paxton's offices did not respond to requests for comment.

The supplemental birth certificate problemis one Democratic state Rep. Rafael Anchia of Dallas has attempted to address for years.

For four consecutive legislative sessions, Anchia filed a bill that would allow same-sex couples to both be listed as adoptive parents of a child. His measure, which picked up Republican support this year, would remove the gender-specific language, which was added to supplemental birth certificates in 1997.

After an emotional plea by Anchia on the House floor earlier this year, the bill was voted out of committee for the first time. It was placed on the House’s calendar for consideration, but it eventually died against a legislative deadline.

On Monday, Anchia renewed his push for gender-neutral birth certificates for adoptees, asking the department of health services in a letter to modify the forms.

“Now that marriage is allowed for same-sex couples in Texas, they should enjoy the full canopy of rights and those rights include parentage and parentage is evidenced, especially in the adoption context, in the birth certificate,” Anchia said in an interview.

If the state refuses to change the supplemental birth certificates and a lawsuit doesn’t resolve the issue, Anchia said he plans to file his bill when the Legislature reconvenes in January 2017.

Though they’re hoping to avoid another lawsuit, that wait for a remedy would be too long for Dimetman and De Leon.